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Q&A With Marlene Trestman, Part 2: Making Bessie Margolin’s Story Known

By Tracy Schorn

May 21, 2018

D.C. Bar member Marlene Trestman is the author of the 2016 book Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, reviewed in the March issue of Washington Lawyer. Trestman recently sat down with the D.C. Bar for a two-part interview to discuss Margolin’s life. In part two, Trestman talks about Margolin fighting Nazis, becoming a mainstream feminist with the National Organization of Women, and her work on the Equal Pay Act of 1963.

Bessie Margolin
Photo Credit: From the personal papers of Bessie MargolinD.C. Bar: Championing the Fair Labor Standards Act might be enough of a lifetime’s worth of accomplishment, but Bessie Margolin was involved in the Nuremberg tribunals, which is just extraordinary. Can you tell us about that?

Trestman: In addition to three decades of championing the Fair Labor Standards Act, which later included the Equal Pay Act, the only significant interruption in Bessie’s time at the Labor Department was, again, for an audacious goal. She had argued before Justice Robert H. Jackson at least twice by the time he was called into action to become the U.S. chief prosecutor for Nazi war crimes in Nuremberg.

Bessie was immediately drawn to what he was doing. She had some background, at least in comparative law, but she wrote to Justice Jackson in 1945, who was very quickly building his legal team, and said she would like to contribute, if she could, to this effort.

He couldn’t use her in the first trials, which were of the top 24 Nazis. But Bessie’s name was still floating about. She had already argued her fourth and fifth cases at the Supreme Court, and she was gaining recognition as a top lawyer in D.C.

1946 approaches, and the first set of trials are underway. They are ready to be completed in the fall of ’46. Bessie is recruited to help figure out what the United States was going to do with the remaining second-tier Nazis, the people who would later be tried. In fact, many Americans are more familiar with the second wave of the Nuremberg trials because these are the doctors who did the horrific medical experiments. These are the judges who were complicit in twisting the law for the Nazis’ aims, and the industrialists who used their major corporations and machines to help fuel the Nazis.

Bessie went to Nuremberg in May of 1946 as a war crimes attorney. It only became clear once she was there if the United States would figure out how it was going to try these other cases. It wasn’t yet certain whether the United States would participate, as it had for the first trial, in another multinational tribunal, or [whether] it would go it alone.

It became clear the United States was going to go it alone, so the need came to establish the American military tribunals that would oversee and bring justice to these other Nazis. So, Bessie was credited by the Army’s commanding officer in Nuremberg with drafting the rules that established the procedures and the courts that tried some 200 second-tier Nazis — the judges, the doctors, and the industrialists.

It was just six months of her life, but one that really brought her to reckon with her own upbringing. Here she was, the daughter of Russian-Jewish immigrants. Whatever she understood about Nazi atrocities before she got to Nuremberg, her eyes opened up while there. She sat and listened to the testimony in the first trial, and heard Justice Jackson deliver his historic closing argument while she was oftentimes preparing the rules for what was to follow.

She resolved early on there that she would use whatever little weight she could throw to increase the number of Nazis tried for murder. She fulfilled her goal by creating the trials that brought these people to justice. Those trials were so historic because, but for the legal record that was created under the rules that she drafted, the world would not know the details of the atrocities. [The trials] also became somewhat of a template for international war crimes trials to follow.

D.C. Bar: Why is Margolin so unknown in this regard?

Trestman: She was the woman in the room. She didn’t have a star role. If she had actually tried cases, actually spoken at the podium, either in Justice Jackson’s first trial or in the second group of trials, perhaps her name would have been more bandied about.

But there were at least a dozen women who did speak at the podium, and very few people are aware of them, either. And they played historic roles.

It was part of Bessie’s life. Unfortunately, we just don’t know much about anything Bessie did — it was my goal to write [her] back into history.

D.C. Bar: You describe Margolin as a reluctant feminist. How did she get involved in the Equal Pay Act, and then later become a founding member of the National Organization of Women?

Bessie Margolin was at the top of her game in the Fair Labor Standards Act. She was associate solicitor of labor, the highest non-political position that a lawyer at the Labor Department could hold, and she loved trying cases. In fact, when there were newsy rumors in the Washington Post about changes in the labor solicitor, Bessie’s name would often come up.

Although I think she probably enjoyed knowing that people thought so well of her, she told people that she would not want the headaches or the additional administrative responsibilities. She loved being in the courtroom.

In 1963 Bessie was overseeing all appellate and trial litigation under the Fair Labor Standards Act, which meant that she oversaw not only the D.C. office but [also] the work under the Fair Labor Standards Act of all of the Labor Department’s regional offices. She had, in her career, trained their attorneys and supervised and helped them pick the cases that would continue to push the Fair Labor Standards Act — both its enforcement, as well as making sure its exemptions were narrow — to the full extent Congress intended.

1963 comes along, and President Kennedy signs into law the Equal Pay Act. As it turns out, Congress decided to put that law into the Fair Labor Standards Act, and it fell on Bessie’s desk. Whether she would have ever pursued those goals of equal opportunity for all women — something that for herself came naturally [and] that she used her pedigree and her smarts to do — I don’t know whether she would have gone that route.

She had said 30 years before that she wasn’t cut out to be the kind of feminist [Doris Stevens was] and to do the kind of work that Stevens was working on. It was when that law landed on her desk that she became a zealous convert.

D.C. Bar: What converted her to feminism?

Trestman: When she was interviewed in the late 1960s, it’s five years into the Act, Bessie told the reporter, “I’ve never been a feminist, but I’m becoming one, based on the hardships I see now that women have to face.” Bessie was in some ways sheltered, perhaps — I’m sure she would disagree with that characterization — by her own success.

There was nothing under the Fair Labor Standards Act that particularly brought her in touch with women’s issues in the workplace. But with the Equal Pay Act on her desk, she learned. She digested the entire legislative history that had been amassed about social inequality, how the country was suffering socially and economically from not using women to their fullest. And it became part of her persona.

D.C. Bar: How did she get involved with the National Organization for Women?

Trestman: In 1966 Betty Friedan and a number of other women were [becoming] totally frustrated with the lack of progress being made by the federal government under the newly enacted Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission, which did not yet have its own enforcement teeth. It essentially acted more as a pass-through or a negotiator.

A group of women decided to meet in a way that would bypass the government’s sort of lack of enthusiasm for enforcing these laws. And somehow Bessie heard about it and showed up in the community meeting room at the Washington Post building. As I understand it, it was where this newly formed group of people who were going to call themselves the National Organization for Women met because it was free space.

Bessie showing up was incredibly significant because she was one of the highest-ranking federal women lawyers in the government. She brought with her the gravitas of that position. She had already been overseeing or involved in the first cases being brought under the Equal Pay Act. When she entered the room, (notoriously late, because I think the meeting started early and that was not exactly Bessie’s forte), the room applauded for her to be there.

D.C. Bar: How old was she then?

Trestman: Bessie was 57. Because this was the organizational meeting of the National Organization for Women, she is a founding member and [is] given that tribute.

Bessie was incredibly mainstream, or always wanted to appear so. She had figured out that the way that she could best present [and] advance herself and whatever cause she was advancing on behalf of workers generally was to appear non-radical [and] mainstream. But in 1966 neither the name National Organization for Women or Betty Friedan could appear in a sentence without being followed by the words “radical women’s organization.”

Bessie would cast it off, saying they’re very reasonable. So, she brought a sense of the imprimatur of a federal government attorney who was well-accomplished and successful at the Supreme Court. She certainly added to the very prestigious ranks of the organization. And she took to it. She would proudly then identify herself with NOW, and again, assure people that it was not a radical organization.

D.C. Bar: Since you’ve written Fair Labor Lawyer what kind of reactions have you received?

Trestman: The first, whether it is law professors or gender historians, [is] an almost embarrassed response from the most learned in their professions: “I can’t believe I didn’t know about her,” or “I didn’t know much about her.”

That’s been very rewarding, to make sure that Bessie is remembered, because there are so many others like her. There are lots of women whose stories simply got overlooked, undeservedly so.

I think the other reaction is people assume, when they hear “orphanage,” that she grew up in a Dickensian, disadvantaged situation as a child, when in fact she was so fortunate to have been given these wonderful opportunities, the most important of which was education. Educational opportunity for Bessie was the way she made every move. She would not have been Bessie Margolin without those educational opportunities.

D.C. Bar: Did Margolin ever internalize the rejection due to discrimination? How did she cope with that?

Trestman: I have to believe, having spent so many years learning the Bessie that I thought I knew, that she was really good at compartmentalizing. I think that it was a self-defense mechanism, perhaps. I don’t think she saw herself as capable of being discriminated against. I think that she saw herself as so darn good and qualified that if anyone didn’t give her a job or something she wanted or an opportunity, that she had to just come up with some other reason.

She continued to harbor a desire to become a law professor, even while she was achieving the highest accolades at the Labor Department. In part, she wanted to earn a little more money. But I also think the desire was still there [from] back in the days [at] Yale Law School and Tulane.

She applied to American University and George Washington University. Here she was, an expert in constitutional law, procedure, Supreme Court advocacy, and, of course, labor law. She got only one offer to teach, and it was in trusts and estates. She ended up not even being able to take that because of the growing demands at the Labor Department.

The funny thing is, she wrote to a colleague about this and said, “You know, this will be a nice opportunity for me to learn something about a new area of law.” I think many of us would have been insulted that any of the areas for which she had such national recognition she couldn’t get that job. Because the jobs were relatively scarce, and even more so than practicing law, she would be bumping a male professor out of that position.

She did, when she retired, actually achieve one of her goals that she couldn’t during her career. She finally had an opportunity to teach labor and employment law at George Washington University. She only did it a short time.

D.C. Bar: What would you like D.C. Bar members in particular to know about Bessie Margolin’s life?

Trestman: One of my favorite aspects of Bessie’s story, especially for an audience such as the D.C. Bar, is that Bessie really shows what it’s like to be a government attorney. She was, of course, one of the more high-profile ones, so many people may think, “Well, she got the big assignment. She was at the Supreme Court.”

What many of us know who have been in federal or state government service is that the law is pushed in small increments. Take two steps forward, a case comes against you, [and] you take a step back. There’s a change in the law. There are challenges.

It’s this wonderful system of checks and balances, and how the three branches of government are always formulating new steps in the law, and where the unsung government lawyers fit into that. You see that with the Fair Labor Standards Act and its very non-sexy issues, but it gives us one of the most important pieces of social legislation today. There is dignity in public service. Bessie Margolin’s life reminds us of that.

The other lesson I think we see in Bessie’s life is that everyone needs mentors. We all need people who we can turn to for advice and guidance, and role models that we can see ourselves in aspirational positions. But what Bessie had — and what we need to be for others — are champions.

What Bessie had was a solicitor general, Charles Fahy, who saw the work she did in preparing him for his Supreme Court arguments and gave her first chance to argue at the Supreme Court. He didn’t have to do it. He had plenty of staff within the Solicitor General’s Office. But he was her champion.

William O. Douglas was her champion in writing recommendations for her, putting her up for a fellowship at Yale. Throughout her life, Bessie had champions. So, I think it’s a terrific lesson: Don’t wait until the pinnacle of your career. Bessie championed other people — men and women, lawyers and staff — all throughout her life. We all need to be, and need to have, champions.

In part one of this interview, Trestman talked about Margolin’s early life, education, passing the Bar in the 1920s as a woman, and the Fair Labor Standards Act.